From the British scire facias to the American Good Behavior: A historical and legal analysis of judicial impeachment in American jurisprudence

Abstract

This article provides a historical and legal analysis of the evolution of the institution of judicial impeachment within the American constitutional order, emphasising its British roots and contemporary interpretive dilemmas. Despite the Framers' clear reluctance towards the institutional legacy of the British Crown, the impeachment mechanism was incorporated into the U.S. Constitution as a means of control over public officials, including federal judges. Key safeguards against arbitrariness, stemming from fears of the English scire facias – a procedure that allowed the monarch to remove an officer based on a presumption of “misbehaviour,” shifting the burden of proof to the accused – include the precise clauses of Good Behaviour, guaranteeing tenure “during good behaviour,” and High Crimes and Misdemeanours. The main research problem concerns the paradigm shift in interpretation initiated on April 15, 1970, by Congressman Gerald R. Ford, who, in his resolution against Supreme Court Justice William O. Douglas, advocated for the Justice’s removal based on a violation of the Good Behavior Clause, irrespective of the commission of a criminal offence. This shift challenged the traditional understanding of impeachment as a remedial procedure of a politico-criminal nature, opening the debate on an alternative, behavioural method of judicial control. The analysis demonstrates that the normative ambiguity of the British concepts of “good behaviour” and “tenure” has a profound impact on the contemporary constitutional debate regarding the possibilities of removing judges from office.